Cara L. Gallagher, Weekend Contributor
How many articles, journals, blog posts, podcasts, and Tweets does it take to understand King v. Burwell? The short answer: Several. One can easily find himself in their own “death spiral” of content, to use the parlance of the media and Justices recently, and still end up in the same place – confused, but maybe hungry for more.
I was hungry for more and followed the analyses closely, but even I got a bit lost in the weeds of the case. It’s been over a week since oral arguments were delivered in King v. Burwell, which took a second stab at the Affordable Care Act in the Supreme Court. By Thursday of last week, at least five friends and students asked me “What the heck is this case really about?” I forwarded links to articles and podcasts that delivered simple, straightforward explanations, and recommended writers to follow on Twitter. But I know some of those well-intentioned folks will never open that link, listen to the podcast, or even open the email. What to do?…
I used to write a segment called “5-cent and 10-cent rundowns” where I dissected critical Supreme Court cases into digestible, short write-ups that one could read to accomplish two goals: 1) gain an understanding of the case; 2) be able to explain the case to someone else if/when the subject came up. These rundowns are for the curious, the hardcore, or those who just want to bookmark this page to come back to in June, when a decision is likely to come down and there is a revival in interest for this case.
5-cent rundown: Can the federal government, via the Internal Revenue Service, give people assistance (tax credits) to purchase insurance through the Federal “exchange” even though the original language in the 2010 Affordable Care Act said the credits are only for those purchasing insurance on exchanges “established by the state”? This case centers on whether or not the Justices will read the law literally or take a broad interpretation of the ACA. These two dubious ways of interpreting the ACA are in essence what divides the Court. Textualists, like Scalia and Alito, are likely to follow the literal letter of the law, whereas Breyer, Sotomayor, and Ginsburg will interpret the letters, the sentence, and the broader context. Either way, this case is certain to be of consequence to the 11 million people getting their insurance through Obamacare.
10-cent rundown: If you’re a living, breathing citizen of the U.S. you have to have healthcare. That fact was established in the controversial 2010 ACA legislation. A separate, major SCOTUS case ruled this was law was constitutional. King isn’t going to impact folks who are fortunate enough to get healthcare through their employer. The core audience in this case are the 30+ million Americans who had no health insurance before Obamacare: Grad students, nannies, consultants, small-business owners, and millions of others.
Since health insurance was mandated, the ACA was written so that everyone would be able to go and get their own insurance in an open market called an “exchange.” The states could set up these exchanges or they could opt out. If your state said “Pass,” you could still go to the federal exchange and pick a provider at a price you could afford. Unless you live in one of the 16 states with its own exchange, you’re forced to get your insurance on the federal exchange. Since the federal government isn’t in the business of handing out cash, the Obama administration has the IRS provide the financial help in the form of tax credits to ease the financial burden of paying for insurance.
Dave King, a 64-year old man, and three other people from Virginia, represent the petitioners in this case. Virginia is one of the 34 states that doesn’t offer an exchange forcing residents into the federal exchange. Burwell is Sylvia Mathews Burwell, the Secretary of the Health and Human Services Department. Solicitor General Donald Verrilli is the attorney representing the government.
If you’re shocked an average-Joe like Mr. King took his case all the way to the Supreme Court, don’t be. Wealthy interest groups, think tanks, and public policy institutes scout petitioners for cases like this that, they think, are prime Supreme Court bait. In King’s case, the Competitive Enterprise Institute is supporting him and his legal team. Michael Carvin is King’s attorney and a Supreme Court advocate who argued the last Affordable Care Act case before the justices in 2012. King and the CEI want to convince four Justices, and either Kennedy or Chief Justice John Roberts, that the IRS and the Obama administration are violating the law by giving Americans in the 34 states without exchanges tax benefits therein dealing a fatal blow to spirit of the ACA.
The government’s argument asserts that King is isolating the words “established by the state” and taking them out of context. Further, it would be counterintuitive to create a piece of major legislation with four words that can internally dismantle the law. The Justices were reminded that many people can only afford to pay for mandatory insurance through the tax credits they get from the IRS. If the 11 million who’ve registered for Obamacare stop paying for their insurance because they no longer have financial support, the infrastructure of the ACA is crippled. As the ACA relies on a system in which millions of healthy people pay to offset the costs for those that are not, such a cataclysm would result in the interminable death spin for Obamacare.
I received a great question this week: “Who asked questions in the Court?” The Justices tend to save their words for challenging hypothetical tests to the attorney or side they’re most troubled by. Silence can be golden. If they’re not asking questions they’re likely, but not always, leaning towards the attorney speaking. [The only exception being the consistently silent Clarence Thomas.] The usual left-leaning justices (Kagan and Sotomayor) challenged King’s attorney while Scalia and Alito had several questions for Solicitor General, Donald Verrilli. [The Wall Street Journal had a simple, easy to read play-by-play here.]
The legal equivalent to Muhammad Ali and Joe Frazier met, again, in the SCOTUS during oral arguments for King. Michael Carvin, a seasoned Supreme Court advocate who represented the petitioners, challenged the constitutionality of the ACA in 2012 and the Florida recount in 2000, versus Donald Verrilli. Verrilli’s mild-mannered, methodical approach, juxtaposed with Carvin’s brazen defense of statutory text, make listening to the audio of the oral arguments worth it.
What’s next? A decision. Many say the justices already know how they’re going to rule by the time oral arguments happen but crafting the text of the decision – especially in close (5-4) cases – takes time. A decision is expected at the end of June, just before the end of the Supreme Court’s term.
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
@ happy
Yes. I do get it that you get it too 😉
The backbone of the small business class can’t take much more. If you have not been in business for yourself or in charge of the bookkeeping and finances of a small business (by this I mean less than 50 employees to just a few employees) you have NO idea of the tax burdens that are placed on businesses.
On top of all the payroll, FICA, workman’s comp, UI both State and Federal, Social Security and Medicare, now we get to be personally penalized through the ACA.
David figured it out right away. If you needed help in one year for insurance subsidies, you’d better NOT improve yourself the next year because you will be penalized for doing better. Just like welfare. You are better off just sucking at the government tit than trying to make something of yourself. Lay back and collect those welfare checks and fill up the EBT cards. Why work?
This is by design. A subservient and beaten down populace that “knows their place” is much easier to herd around and keep domesticated than a bunch of untameable business cats. Herding cats is hard. Herding sheep is easy.
Dust Bunny Queen
I came here because of this Debacle and JT being a Democrat and seeing through it.
Davidm2575 and I disagree a lot but this was something he told me I was right on immediately because I was having an indignation rant of Liberty and Consciousness and he probably was surprised.
I know he saw it right away and I look forward to his posts describing exactly how I went to the doctor as a single mother with 3 children and paid 32 dollars. They would charge you 3 dollars for filling out insurance and I was too proud to use my former husbands filthy insurance.
This was how we kept costs down in the 70s when my children were very young and the early 1980s and then we had the birth of the HMOs and Healthcare had already become big business between Pharnacology, Insurance, Hospitals and the Machinery within and Doctors and their specializations and now Sports Medicine and Alternative Medicines of all forms that are probably paid for by the Veterans.
It’s endless what Uncle Sugar Pays for now. Gimme Gimme Gimme Gimme I want more! 😀
Aridog,
I gave you the direction to check dictionaries as a start so that you would not be getting my definition. The various definitions of state use it interchangeably between a national state and a more local geographic institution, ie, the state of Illinois. That was what I wanted you to see from neutral sources other than my understanding of it. No disrespect was intended.
That should be a !
Hear hear Old Nurse?
They can’t step in to defend the indefensible. They can’t explain why the law will not be enforced as written. They have enjoyed the Kool Aid and look to the Court to save Obamacare with some made up justification. They can not resubmit the law to the Congress because the President will never compromise with the Republicans. He never has and never will. His disrespect for the Constitution and the separation of powers is almost….legendary.
Now he is looking at raising taxes through unilateral executive action through the IRS without reference to Congress.
As proposed by a self proclaimed Socialist member of Congress in Senator Bernie Sanders. You see President Obama could be a lot more “flexible” now that he was re-elected.
@ Happy
The premium credit received was based on your 2013 actual income and “estimated” 2014 income. If you are self employed, as we are, this could be disaster. It can also be disaster for someone who was lucky enough to get a better job in 2014 or get a raise.
DISASTER…….Why?
Because if your income in 2014 is actually higher than the “estimated” amount from 2013 you might owe a refund BACK to the government for them overpaying you for the subsidy. You got MORE than you should have. In addition the payback of subsidy can be a cliff event…..meaning that if you made over a certain amount you owe the WHOLE thing back. That can be thousands of dollars for some people.
You won’t know until you file your taxes. Surprise!!
DBQ wrote: “Because if your income in 2014 is actually higher than the “estimated” amount from 2013 you might owe a refund BACK to the government for them overpaying you for the subsidy.”
Great, now we have more penalties for being successful. It never seems to end!
Dust Bunny Queen
Form 8962 (Premium Tax Credit) and Related Form 1095-A (Health Insurance Marketplace Statement)
September 5, 2014
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As we approach the 2015 filing season, now is a good time to clarify how the new Form 8962 (Premium Tax Credit) is laid out and how the Form 1095-A (the information an individual will receive from the Marketplace) is related to the calculation of the premium tax credit for Tax Year 2014.
No, I am not surprised.
Look at this thread and what I have printed.
Not one of these Lawyers will pay any attention to it. This is why I started on JT’s thread because he understood it. You did right away and I agreed with you but I was new so you did not reply right away to me. The one thing I never wavered on this thread on was ACA being a pile of doo doo. And I remember you saying over and over and over again how much you had to pay in taxes to different and sundry Liberals on here who treated you like a moron for saying so. I know it’s breaking the backbone of the Middle Class.
I know.
You go back if you have time and look at my ravings that otherwise intelligent people that turn their taxes into their tax man to do have no understanding of. I am a do it yourselfer. I did my husband’s C form in the 2nd marriage as he was a house painter.
I did tax forms for a burglar alarm company and tire patch company I worked for before there was a turbo tax.
I understand completely how much of a liability this is and I hate it that the the Liberals are not trying to understand that it is a liability for people who are working for themselves and are not dependent on Uncle Sugar to pass the milk and honey because they want to make an honest living.
Okay? 😉
I’d much rather pay taxes to help people buy health insurance than to pay for the weapons that our government uses to murder people all over the place – including countless innocent civilians.
old nurse wrote: “I’d much rather pay taxes to help people buy health insurance than to pay for the weapons that our government uses…”
You have the function of government backwards. The government is not suppose to be your nanny or mommy. The government is an efficient way to provide security for all of society. When people with health problems need help, go help them yourself. Bring them to the doctor if that is where their confidence lies. Pay for their prescription if that is what they trust in. Bandage their wounds, make them chicken soup, watch their children for them. Gather up a collection to pay the doctors who serve them. To turn to government to provide health care is to force all your neighbors at gunpoint to pay for their health care. That is immoral.
@ Ari
Since the attorneys here don’t want to discuss the actual law and rely on insults……Your quote at 4:55 is quite pertinent. I also referenced the wording that an exchanged established under section 1311 and that the premium assistance is only offered (according to the actual language of the law) for an exchange established under 1311.
Under section 1321 the federal exchanges can be established, but there is no mention of the assistance in this section. Just that they can…..in the absence of a State Exchange set up one of their own..
The law was written this way because they had an additional clause that IF a Stated did not establish and exchange they would LOSE their Medicaid funds. It was to be a club to force the States (as in the individual States) to take on the burden of not only administering Obamacare but the additional expensive expansion of Medicaid eligibility.
The authors of this law thought that they had the States over the proverbial barrel in that they would be deprived of ALL of it’s Medicade funds if they decline to play. http://www.scotusblog.com/2012/06/court-holds-that-states-have-choice-whether-to-join-medicaid-expansion/
The Court’s decision on the constitutionality of the Medicaid expansion is divided and complicated. The bottom line is that: (1) Congress acted constitutionally in offering states funds to expand coverage to millions of new individuals; (2) So states can agree to expand coverage in exchange for those new funds; (3) If the state accepts the expansion funds, it must obey by the new rules and expand coverage; (4) but a state can refuse to participate in the expansion without losing all of its Medicaid funds; instead the state will have the option of continue the its current, unexpanded plan as is.
The Supreme Court struck down this punitive clause while leaving the rest of the ACA intact. Once this “club” was removed most of the States decided not to play the game.
Seeing how expensive Medicaid is and how the expansion due to just the avalanche of illegal aliens is bending some States sideways (fiscally) many states looked at their budgets now and in the future and said. No thanks.
Uh oh!!! Now what? The IRS steps up and creatively decides that the law’s text doesn’t mean what it plainly says. That Federal Exchanges ALSO get the subsidies…… and therefore we are all in this mess.
It would be nice to see some of the (so called) legal experts weigh in on this conundrum and give us something besides….look up a word in the dictionary.
America’s uninsured rate just fell by one-third – quelle horreur!
A new report from Health and Human Services finds that the uninsured rate has fallen from 20.3 percent prior to the health-care law down to 13.2 percent at the start of 2015. This is a 7.1 percentage-point decrease in the uninsured rate — or, to put it another way, a 35-percent decline in the number of Americans who lack insurance coverage.
“Nothing since the implementation of Medicare and Medicaid has come close to this kind of change,” says Richard Frank, assistant secretary for evaluation and planning at Health and Human Services.
The decline in coverage has coincided with two big Obamacare programs. First, there was the part of the law that required employers to offer dependent coverage up through age 26. Since that program began in 2010, the uninsured rate among young adults (Americans between the ages of 19 and 26) has dropped from 34.1 percent to 26.7 percent.
Second, and much larger, was the start of the health law’s insurance expansion in 2014. Federal officials estimate that since the expansion started, 14.1 million Americans have gained coverage, largely through Medicaid and the health law’s marketplaces for private insurance.
I guess President Obama could have just written a letter, but….
zedalis wrote: “A new report from Health and Human Services finds that the uninsured rate has fallen from 20.3 percent prior to the health-care law down to 13.2 percent at the start of 2015.”
So the government makes it illegal to be uninsured, and we still have 13.2 percent uninsured. That should tell you something is wrong with this law. Why do we not have 100% compliance with the new law? If it was a good law, everybody would comply.
I realize I am highlighting what seems important to me. IANAL and that is why I asked the questions I did here on the board, where lawyers are present. I appreciate an honest attempt to answer, and I do NOT appreciate being directed to Google up some definitions of a rather common word like some school kid.
As for lawyers, I presume those of you all who are lawyers know more of the law than I do…just as I am pretty certain I know more about the military and DOD than most others here. That said, a simple question of what a simple word means in common parlance in the USA requires neither skill sets. If we get to where only government officials define what words mean, we are toast. We go from citizens to servants, of public servants…the redundancy of which amuses me.
Aridog
Look at how the Advanced Premium Credit is calculated
https://www.crosslinktax.com/tax-updates/Form-89620-Premium-Tax-Credit-and-Related-Form-1095-A.asp#.VQdPTJzT3IU
Step 1 – Calculate the actual premium tax credit for 2014 based on the taxpayer’s 2014 income and family size.
Step 2 – Enter the advance premium tax credit that the taxpayer received each month of 2014.
Step 3 – Subtract the advance premium tax credit from the calculated premium tax credit which will result in a:
Refundable credit if the calculated credit is greater than the total advance premium tax credit (which will be reported on Form 1040, line 69);
Additional Tax if the total amount of advance premium tax credit is greater than the calculated premium tax credit (which will be reported on Form 1040, line 46).
Isn’t that Special???
mespo727272 …. thanks for the response that trys to answer my questions. You cite (quoted in part only here):
Section 1311 of the Act provides that “[e]ach State shall, not later than January 1, 2014, establish an American Health Benefit Exchange.” ACA § 1311(b)(1). However, § 1321 of the Act clarifies that a state may “elect” to establish an Exchange. Section 1321(c) further provides that if a state does not “elect” to establish an Exchange by January 1, 2014, or fails to meet certain federal requirements for the Exchanges, “the Secretary [of HHS] shall ․ establish and operate such exchange within the State․” ACA § 1321(c)(1). Only sixteen states plus the District of Columbia have elected to set up their own Exchanges; the remaining thirty-four states rely on federally-facilitated Exchanges.
Eligibility for the premium tax credits is calculated according to 26 U.S.C. § 36B. This section defines the annual “premium assistance credit amount” as the sum of the monthly premium assistance amounts for “all coverage months of the taxpayer occurring during the taxable year.” Id. § 36B(b)(1). A “coverage month” is one in which the taxpayer is enrolled in a health plan “through an Exchange established by the State under section 1311.” Id. § 36B(c)(2)(A)(i); see also id. § 36B (b)(2)(A)-(B) (calculating the premium assistance amount in relation to the price of premiums available and enrolled in “through an Exchange established by the State under [§ ] 1311”).
The “each state” part seem pretty convincing in terms of common American English parlance. HHS setting up an exchange “within” a state” is not the same as an exchange set “up by the state.”
Question: Is Healthcare dot gov set up as individual exchanges within the states, or is it a central federal exchange? It appears to be focused on individual locales, but is unclear on whether that is actuarial or a location requirement.
I suspect the court may again defy semantics like they did when determining a penalty for non-performance to be equivalent to a tax based upon the proceeds of performance. (Polar opposite concepts) If so, then I’d say our language, that used by ordinary people (heaven forbid) in common parlance, is swirling around the drain as we speak.
The reason why Congress became Republican was because of the damage that Obamacare has done to millions of Americans who had health insurance that they were perfectly happy with. A veil of secrecy and deceit and incompetence covered exactly how fatally flawed this attempt at increasing government control over your every move. It was camouflaged at every turn. From the millions of dollars paid out for a ridiculously flawed website….to the continual pushing back of the stated dates of compliance in the law to avoid political blowback…. to the bald faced lie that “If you want to keep your doctor…you can keep your doctor…if you want to keep you plan….you can keep your plan”…..this has been a lie from the start. It is a lie to this day.
Oh I’m sure Rafflaw must be simply heartbroken.
You have all manner of choices. Obama care has three levels of coverage from Bronze to Gold with differing levels of coverage.
Not exactly correct. Differing levels of co pay and out of pocket,and deductibles ….. yes. This was always true of insurance. Reference my high deductible catastrophic plan.
However ALL policies NOW have to meet certain qualifications to be certified under the ACA. http://bewv.wvinsurance.gov/Portals/2/pdf/Stakeholder%20Documents/Summary%20of%20QHP%20Certification%20Requirements.pdf
The ACA requires that ALL policies cover essential benefits and some cover more.
These essential health benefits include at least the following items and services:
Outpatient care—the kind you get without being admitted to a hospital
Trips to the emergency room
Treatment in the hospital for inpatient care
Care before and after your baby is born
Mental health and substance use disorder services: This includes behavioral health treatment, counseling, and psychotherapy
Your prescription drugs
Services and devices to help you recover if you are injured, or have a disability or chronic condition. This includes physical and occupational therapy, speech-language pathology, psychiatric rehabilitation, and more.
Your lab tests
Preventive services including counseling, screenings, and vaccines to keep you healthy and care for managing a chronic disease.
Pediatric services: This includes dental care and vision care for kids
The items in bold are the essential care costs that I would have to pay for that I don’t want and will never ever need. If I got pregnant and had a baby at this stage, it would be a miracle and I would be famous and wealthy 😀
Aridog:
Not to speak for rafflaw, but here is the Fourth Circuit opinion that addresses the issue in the context of deference to the decision of HHS to implement the law under its interpretation where Congress hasn’t directly addresses the issue:
http://caselaw.findlaw.com/us-4th-circuit/1673339.html
BTW…rafflaw … I gave the respect you deserve, which is substantial, and you answer like I am some school child in 3rd grade. From here on out, talk to the hand. Anyone who will not answer a simple direct question isn’t worth talking to in the first place.
DBQ:
You have all manner of choices. Obama care has three levels of coverage from Bronze to Gold with differing levels of coverage. You also have the option of your employers’ plans with a myriad of options. You are not free now to avoid all coverages you don’t want under coverage mandates enforced bu your state. Yours is a straw-man argument.
rafflaw …I should look up a word in a dictionary? That’s your answer to my question of what the common parlance is for that word. In short, I know you are smarter than that and simply choose not to answer. Thanks a pant load.
BTW…I had already looked up the use of the word. Just which of the many historical interpretations do you favor? I kinda prefer the current 18th thru 21st Century one. Never mind, you won’t answer that either. You must take me for an idiot. You are merely dodging an answer.
@ mespo
Do you think that I should have the right to choose the level of medical coverage based on my needs or be forced to buy a policy based on what the central government planners say I need.
I don’t need maternity care, birth control, pediatric dentistry, acupuncture, substance abuse counseling or many other things that are mandatory in the Obamacare policies. Why should people, such as I ,be forced to pay for things that I will never ever need?
Previously, I carried a high deductible catastrophic only plan with an associated HSA. Since I never go to the doctor, take no medications, have no current conditions of any kind and only needed coverage in case I get hit by a truck or develop a really really serious illness, and since I CAN handle a large deductible and since I have money in an HSA to cover the deductible or other out of pocket costs……..why should I be forced to buy coverage that is MORE than I need and more than I can use?
I think people are foolish to not carry insurance. They are even more foolish to buy more than they need for their individual circumstances. Part of financial planning is to analyze what is appropriate for each client’s individual circumstances and make the appropriate choices based on an educated risk and reward basis.
Unfortunately…..we no longer have any choices. Welcome to the collective comrade 🙁
Trooper York:
“It failed because Obamacare is do unpopular that many governors were more than willing to take the hot instead of buying into a fatally flawed act.”
**********************
Of course, like most of your pronouncements, it’s wrong and wrong. It hasn’t failed. From cnbc today:
“Obamacare has led to the biggest decrease in the numbers of Americans lacking health insurance in four decades—with minorities and young adults seeing the largest gains in coverage, the federal government said Monday.
A total of 16.4 million previously uninsured adults nationwide obtained health coverage since the Affordable Care Act became law, according to the U.S. Department of Health and Human Services.”
The reason it wasn’t adopted in the states was the Republican strategy of undermining this President by any means available, the public interest be damned.
http://hamptonroads.com/2012/06/mcdonnell-gop-governors-vow-health-care-fight
mespo wrote: “If you mean folks can avoid health insurance costs by “going it alone” and then driving up the cost for the rest of us when they invariably present to the ER with maladies made magnitudes worse because they avoided early care, I think you’re daft.”
I believe in President Jefferson’s tax policy. That would mean we would have to repeal the 16th Amendment and pass another Amendment to prohibit the government from borrowing money. We are so far away from Jefferson’s fiscal vision for America that I am sure anything I say will fall on deaf ears. Taxation is the primary method by which governments oppress their people. And to tax someone to pay for something that person does not believe in is immoral. That is why the sole realm of government should be the security of society. Everyone can agree upon the government’s role for security. When government extends its reach beyond that, it is immoral.
We no longer live under the rule of law, as this particular lawsuit highlights. When words no longer mean what they say, and instead we go by what the rulers want to do regardless of their poorly worded law, then we are under the politicians and their sycophants rather than under the rule of law.
As a point of liberty, I can properly choose not to engage the medical establishment for whatever reasons I choose. I am 55 years old and have operated this way all my life. Neither myself or any of my family have ever gone to a hospital emergency room for our health care. If I choose to deliver my own children at home instead of going to the hospital and medical professionals, I have that right. If I choose not to turn to the potions and pills prescribed by medical doctors who are in my opinion not too far removed from the witch doctors and shamans of past civilizations who operated in a similar manner for the villages they belonged to, that is my right and liberty. There is no clear evidence that overall people who go to doctors for health care are more healthy than those who do not. If a person chooses good diet and exercise over potions and pills, that is their freedom of choice and you ought not infringe upon that right. For you to claim now that I put a financial burden upon you and others for doing so is pure lunacy. I would stack my lifetime health care bills for my family of 7 against yours any time you like. I am certain that by my choice not to buy health insurance, I have spent far less than you and your insurance company have for your health care. I have cost you less money in insurance premiums because I am not weighing down the system with insurance claims.
There are three that increase health care costs for you right now, and my family and I are not one of them.
1. Insurance companies
2. Government, especially through the ACA
3. People who can’t live without insurance and regularly run to the doctor for every cough and sneeze.